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‐ 4554

‐ cv

Coleman v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 22 nd day of September

, two thousand

and fourteen.

PRESENT: JOHN M. WALKER,

RICHARD C. WESLEY,

Circuit Judges,

JOHN F. KEENAN,

District Judge, *

__________ ____________

VINCENT COLEMAN,

Plaintiff

‐ Appellant,

‐ v. ‐ 13

‐ 4554

‐ cv

CITY OF NEW YORK, POLICE OFFICER MELISSA

D. LENTO, POLICE OFFICER MARGARET MERENDINO

,

* The Honorable John F. Keenan, of the United States District Court for the Southern

District of New York, sitting by designation.2 Defendants

‐ Appellees,

JOHN DOES, A

‐ F, the names “Doe” being fictitious and

intended to represent those supervisors or other decision makers

who set or determined the policy, practice or decision for the

CITY OF NEW YORK to maliciously and falsely prosecute

Plaintiff, SERGEANT KENNETH TINAJERO,

Defendants.

FOR APPELLANTS: MICHAEL P. MANGAN, Mangan Ginsberg, LLP, New

York, NY.

FOR APPELLEES: ZACHARY W. CARTER, Corporation Counsel of the

City of New York (Richard Dearing, Kristin M.

Helmers, Janet L. Zaleon, on the brief ), New York, NY.

Appeal from the United States District Court for the Eastern District of

New York (Eric N. Vitaliano, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED in part and

VACATED and REMANDED in part.

Plaintiff

‐ Appellant Vincent Coleman appeals from an October 24, 2013

Memorandum and Order of the United States District Court for the Eastern

District of New York (Vitaliano, J. ) granting summary judgment in favor of all

Defendants on all claims. On appeal, Coleman challenges only the grant of3 summary judgment on his abuse of process and malicious prosecution claims to

the City of New York and individual Defendants, Officer Lento and Officer

Merendino. We assume the parties’ familiarity with the underlying facts, the

procedural history, and the issues for review.

First, under § 1983, an abuse of process claim in New York “lies against a

defendant who (1) employs regularly issued legal process to compel performance

or forbearance of some act (2) with intent to do harm without excuse or

justification, and (3) in order to obtain a collateral objective that is outside the

legitimate ends of the process .” Cook v. Sheldon

, 41 F.3d 73, 80 (2d Cir. 1994);

accord Savino v. City of New York

, 331 F.3d 63, 69

‐ 70 (2d Cir. 2003).

Coleman argues that the two officers sought to punish him, and suggests,

citing Savino

, 331 F.3d at 77, that this motive to punish constitutes a “collateral

objective.” (Pl. Mem. Opp. 14, Dkt. No. 38; Br. at 33). This interpretation is

inapposite to Savino

, which holds that “it is not sufficient for a plaintiff to allege

that the defendants were seeking to retaliate against him by pursuing his arrest

and prosecution. Instead, he must claim that they aimed to achieve a collateral

purpose beyond or in addition to his criminal prosecution.” 331 F.3d at 77. As

such, retaliation for some offense will not suffice as a collateral motive for the4 purposes of an abuse of process claim, and Coleman alleges no alternative

motive. The district court thus properly granted summary judgment on the

abuse of process claim.

Second, as to the malicious prosecution claim, the only issue presented on

appeal is whether the district court correctly found probable cause for Coleman’s

arrest, thus defeating a claim for malicious prosecution. Stansbury v. Wertman

,

721 F.3d 84, 94

‐ 95 (2d Cir. 2013) (“[T]he existence of probable cause is a complete

defense to a claim of malicious prosecution” (quoting Manganiello v. City of New

York

, 612 F.3d 149, 161

‐ 62 (2d Cir. 2010)). The record, including Coleman’s own

testimony, establishes that as to two charges—unlawfully fleeing from a police

officer and obstruction of governmental administration—there indisputably was

probable cause and thus the district court properly dismissed Coleman’s claims

of malicious prosecution as to those charges.

Summary judgment should not have been granted, however, on the claim

of malicious prosecution on the charge of assault. “The question of whether or

not probable cause existed may be determinable as a matter of law if there is no

dispute as to the pertinent events and the knowledge of the officers

. . . .” Weyant

v. Okst

, 101 F.3d 845, 852 (2d Cir. 1996). “Where the question of whether an5 arresting officer had probable cause is predominantly factual in nature, as where

there is a dispute as to the pertinent events, the existence vel non of probable

cause is to be decided by the jury.” Murphy v. Lynn

, 118 F.3d 938, 947 (2d Cir.

1997). We have held that “[a]ssessments of credibility and choices between

conflicting versions of the events are matters for the jury, not for the court on

summary judgment.” Rule v. Brine, Inc.

, 85 F.3d 1002, 1011 (2d Cir. 1996).

Here, the district court impermissibly assessed the credibility of the

witnesses in finding that, as a matter of law, probable cause existed to prosecute

Coleman for assaulting Officer Merendino with his car mirror as he drove off.

Coleman did not simply deny the claim that his car hit Officer Merendino; rather

he offered specific testimony contradicting the officers’ version of the events.

Furthermore, the officers’ testimony about Coleman’s car hitting Officer

Merendino included several internal inconsistencies, including where on her

body Officer Merendino was injured and whether Officer Lento was in a position

to have seen the actual assault—as she testified. Based on this evidence, if

Coleman were credited, a reasonable jury could find that the officers did not

have probable cause to prosecute Coleman on the assault charge. Accordingly,6 we vacate the district court’s grant of summary judgment to defendants on

Coleman’s claim of malicious prosecution on the assault charge.

We have considered all of Plaintiff’s remaining arguments and find them

to be without merit. For the reasons stated above, the judgment of the district

court is AFFIRMED in part and VACATED and REMANDED in part.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk